Plaintiff must not be suing solely as citizen or as a taxpayer interested in having the government follow the law

- Ex. Congress shall give a regular statement and account of all expenditures. Citizen sued saying that statute that provides for secrecy of CIA spending violates the Statement and Accounts clause. Citizen was suing for a generalized grievance, thus no standing.

- Test – fact pattern will say plaintiff is suing as a “citizen” or as a “taxpayer”

2) SC has original and exclusive jurisdiction for suits between state governments

The Final Judgment rule

- Generally, the SC may hear cases only after there has been a final judgment of the highest state court, of a US court of appeals, or of a 3 judge federal district court

- Generally, no interlocutory review in the SC

State law ground of decision

- For the SC to review a state court decision, there must not be an independent and adequate state law ground of decision.

- If a state court decision rests on two grounds, one state law and one federal law, if the SC’s reversal of the federal law ground will not change the result in the case, the SC cannot hear it

- Ex. Person is beaten up by LA police officers. Victim sues in CA state court. Victim brings two claims: federal law civil rights claim and state law battery claim. Plaintiff wins in state court on both claims and is entitled to equal damages under either claim, but not for both.

1) SC cannot review the state law battery claim

2) Can't review federal claim because even reversal, plaintiff still wins under state law claim

Suits against state governments

- Federal courts and state courts may not hear suits against state governments

Either the government has to stop what its doing, or the conduct must comply with the Constitution

Court enforcement of racially restrictive covenants

State Action

State leases premises to a restaurant that racially discriminates

State Action

State provides books to schools that racially discriminate

State Action

State authorizes a private entity to regulate interscholastic sports within a state

State Action

A private school that is over 99% funded by the government fires a teacher because of her speech

No State Action

There is a government subsidy

No State Action

NCAA orders the suspension of a basketball coach at a state university

No state action

A private club with a liquor license from the state racially discriminates

No state action

Application of the Bill of Rights

1) The Bill of Rights applies directly only to the federal government

2) The Bill of Rights is applied to state and local governments through its incorporation into the Due Process Clause of the Fourteenth Amendment

Incorporation

- Protects fundamental rights from state and local governments

- Total incorporationists v. selective incorporationists

Exceptions
1) Second Amendment right to bear arms

2) Third Amendment right to not have a soldier quartered in a person’s home

3) Fifth Amendment right to grand jury indictment in criminal cases

4) Seventh Amendment right to jury trial in civil cases

5) Eighth Amendment right against excessive fines

Test – whenever you have an essay question where the state or local government is alleged to have violated a Bill of Rights provision, always say that “this provision applies to state and local governments through its incorporation of the due process clause of the Fourteenth Amendment”

Rational Basis Test

a law is upheld if it is rationally related to a legitimate government purpose

- Purpose: conceivable legitimate, permissible purpose, even if it isn’t the actual purpose

- Means: rational or reasonable

- Tremendously deferential to the government

- Burden of Proof: Challenger

1) No conceivable legitimate purpose

2) Or the law is not rationally related to it

Intermediate Scrutiny

a law is upheld if it is substantially related to an important government purpose

- More than just legitimate, Gov’s objective must be important.

- Court will look only to government’s actual purpose.

- Means: must be substantially related to achieving that purpose; narrowly tailored: Don’t have to be the best way.

- No least restrictive alternative analysis

- Burden of Proof: Government

Strict Scrutiny

A law will be upheld if it is necessary to achieve a compelling government purpose
Government’s goal must be vital.

occurs if there is the loss of a significant freedom provided by the Constitution or a statute (written law)

- Test – violation of a person’s constitutional rights

- Ex. Except in emergency, before an adult can be institutionalized, must be notice and hearing

- Ex. A parent institutionalizes a child, only has to be a screening by neutral fact finder.

- Ex. Harm to reputation by itself is not a loss of liberty. (wrong “wanted” poster)

- Ex. Prisoners rarely have liberty interests.

A deprivation of property (Due Process)

occurs if there is an entitlement and that entitlement is not fulfilled

- Previously, there was no due process violation for taking away a privilege, only a right. SC has eliminated this, and the analysis now focuses on entitlements.

a) Entitlement – reasonable expectation to continued receipt of a benefit

- Ex. Person works for the government, and the government promises the individual that the job will be theirs for the next year. In the middle of the year, the person is fired. Sues for due process. Was the government required to give due process? Yes, the person had a reasonable expectation that they would have the job for the rest of the year

- Ex. Each contract made clear that there was no expectation that it would be renewed. Contract ended. Was the government required to provide due process? No, no due process issue because he didn’t have a reasonable expectation that it would be renewed.

b) On Test – answers distinguishing between rights and privileges are wrong

Government negligence

is not sufficient for a deprivation of due process.

- Generally, there must be intentional government action or at least reckless action for liability to exist.

- However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”

Government’s failure to protect people from privately inflicted harms

Generally, does not deny due process

- Ex: Failure to respond to accusations of child abuse.
Government has no duty to protect child from parents.

- Only if the government literally creates the danger, or if the person is in government custody, does the government have any duty to prevent privately inflicted harm

What procedures are required for Due Process?

- Three Part Balancing Test

1) Importance of the interest to the individual

2) The ability of additional procedures to increase the accuracy of the fact-finding

3) Government’s interests (Usually in saving money; efficiency)

Due Process Requirement before welfare benefits can be terminated

there must be notice and a hearing

Due Process Requirement when SS disability benefits are terminated

there need only be a post-termination hearing

Due Process Requirement when a student is disciplined by a public school

there must be notice of the charges and an opportunity to explain

Due Process Requirement before parental rights can be permanently terminated

there must be notice and a hearing

Due Process Requirement for punitive damage awards

require instructions to the jury and judicial review

- Grossly excessive punitive damages violate due process

Due Process Requirement when an American citizen detained as an enemy combatant

must be accorded due process

- At a minimum – notice of the charges, representation of a lawyer, fair trial

Due Process Requirement for pre-judgment attachment or government seizure of assets

Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be proceeded by notice and a hearing (exigent: would sell if given notice)

- Due process does not require an “innocent owner” defense to government seizure (can take the John's car even if wife owns)

Substantive Due Process (definition)

Whether the government has an adequate reason for taking away a person’s life, liberty or property? (substantive justification for its actions)

Constitutional protection for economic liberties

Minimal

- Only a rational basis test is used for laws affecting economic rights

- On Test

1) Challenge to minimum wage

2) Right to practice trade or profession

3) Challenge of consumer protection law

Takings Clause

Government may take private property for public use if it provides just compensation:

1) Is there a taking?
2) Is it for public use?
3) Is just compensation paid?

Is there a taking?

1) Possessory taking – government confiscation or physical occupation of property is a taking
Does not matter how small the property

2) Regulatory taking – government regulation is a taking if it leaves no reasonable economically viable use of the property

Notes:

- Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking

- A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

- Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable (Ex. Moratoriums)

Is it for public use? (Takings)

If it is not for public use, the government must return the property.

However, the SC has broadly defined public use so that virtually ever taking will meet this requirement:

- So long as the government act out of a reasonable belief that the taking will benefit the public

Is just compensation paid?

Measured as the loss to the owner in terms of reasonable market value; gain to taker is irrelevant

Contracts Clause

No state shall impair the obligations of contracts

1) Applies only to state or local interference with existing contracts (no federal)

2) State or local interference with private contracts must meet immediate scrutiny

- Does the legislation substantially impair a party’s rights under an existing contract?

- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? (mishmash of standards)

3) State or local interference with government contracts must meet strict scrutiny

4) The ex post facto clause does not apply in civil cases; only criminal cases

- An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed

- Test – violation of ex post facto clause is a WRONG answer when dealing with contracts clause (because it is a civil liability)

- Retroactive civil liability only need meet a rational basis test

- A bill of attainder is a law that directs the punishment of a specific person or persons without a trial

Privacy

is a fundamental right protected under substantive due process (strict scrutiny must be met)

Right to marry

Privacy Right (strict scrutiny)

Right to procreate

Privacy Right (strict scrutiny)
- Ex. Involuntary sterilization

Right to custody of one’s children

Privacy Right (strict scrutiny)

- Ex. Parental abuse or neglect

- A state may create an irrebuttable presumption that a married women’s husband is the father of her child

Right to keep the family together

Privacy Right (strict scrutiny)

- In order to be considered a family, the individuals must be related to one another

- Ex. Zoning ordinances cannot prevent extended family from living together

Right to control the upbringing of one’s children

Privacy Right (strict scrutiny)

- Ex. Right to send children to parochial school

- Ex. Court granting grandparent visitation over parents’ objections

Right to purchase and use contraceptives

Privacy Right (strict scrutiny)

Right to abortion

Strict scrutiny is no longer used; Now, undue burden test

1) Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions

a) Examples:

- A requirement for a 24 hour waiting period for abortions is not an undue burden

- A requirement that abortions be performed by licensed physicians is not an undue burden

- The prohibition of “partial birth abortions” is an impermissible undue burden

b) After viability, states may prohibit abortions unless necessary to protect the women’s life or health

2) The government has no duty to subsidize abortions or provide abortions in public hospitals

3) Spousal consent and notification laws are unconstitutional

4) Parental notice and consent laws for unmarried minors

- A state may require parent notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself

Right to engage in private consensual homosexual activity

level of scrutiny not announced in Lawrence

Right to refuse medical treatment

level of scrutiny unknown

1) Competent adults have the right to refuse medical treatment, even life-saving medical treatment

2) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended

3) A state may prevent family members from terminating treatment for another

Right to physician-assisted suicide

Rational basis review

Approach to equal protection questions

1) What is the classification?

2) What level of scrutiny should be applied? (if not his example, rational basis)

3) Does this law meet the level of scrutiny?

Constitutional provisions concerning equal protection

1) The equal protection clause of the Fourteenth Amendment applies only to state and local governments (Does not apply to federal government)

2) Equal protection is applied to the federal government through the due process clause of the Fifth Amendment

3) Scrutiny same regardless of level

Classifications based on race and national origin

Strict scrutiny is used

How is the existence of a racial classification proven?

1) The classification exists on the face of the law

- Law in its very terms draws a distinction among people based on their race

2) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory IMPACT and discriminatory INTENT

- Ex. Discriminatory use of peremptory challenges based on race denies equal protection

How should racial classifications benefiting minorities be treated?

1) Strict scrutiny is applied

2) Numerical set-asides require clear proof of past discrimination

- Hostile to anything that looks like a quota or a set-aside

3) Educational institutions may use race as one factor in admissions decisions to help minorities

a) To enhance diversity to benefit minorities

b) Cannot add points to an admission score solely on the base of race

4) Seniority systems may not be disrupted for affirmative action

- General rule – last hired, first fired

Gender classifications

Intermediate scrutiny is used

- Allowed only if there is an “exceedingly persuasive justification” (added requirement)

How is the existence of a gender classification proven?

1) The classification exists on the face of the law

- Ex. Women could buy beer at age 18, but men could not until age 21

- Ex. Only men could attend military state university

2) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent

- Ex. To be a police officer, applicant must meet height and weight requirements (only RBR unless show INTENT)

- Ex. Discriminatory use of peremptory challenges based on gender denies equal protection

How should gender classifications benefiting women be treated?

1) Gender classifications benefiting women that are based on role stereotypes will not be allowed (ie women always dependent)

- Ex. In case of a divorce, a woman could be awarded alimony, but a man may never be awarded alimony

- Ex. Military benefits automatically awarded to widows, but men must prove they were economically dependent upon their service-member wife

2) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed

- Ex. Remedying wage discrimination

Alienage classifications

laws that discriminate against non-citizens

1) Generally, strict scrutiny is used

- Ex. Only US citizens could hold civil service positions  unconstitutional

- Ex. Only US citizens could be admitted to the bar  unconstitutional

2) Only a rational basis test is used for

- Alienage classifications that concern self-government and the democratic process can be reserved just for citizens

- Ex. Voting, serving on a jury, and being a police officer, teacher or probation officer (not notary public)

3) Congressional discrimination against aliens: Congress has plenary power to regulate immigration

4) It appears that intermediate scrutiny is used for discrimination against undocumented alien children

- Procedurally proper court orders must be complied with until they are vacated or overturned

- A person who violates a court order is barred from later challenging it (collateral bar)

- Ex. Gag orders on the press to prevent prejudicial pretrial publicity are not allowed

2) Government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority

3) Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review

Vagueness

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

- City bans book that “corrupt the morals of youth” (vague)

Overbreadth

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated

- Ex. Law against live entertainment meant to prevent nude dancing, but also prevented concerts, etc.

Fighting words laws

are unconstitutionally vague and overbroad (not protected by First Amendment)
Words directed at another that are likely to provoke a violent response

Symbolic Speech

Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose

Flag burning

is constitutionally protected speech

Draft card burning

is not protected speech

Burning a cross

is protected speech unless it is done with the intent to threaten

Contribution limits in election campaigns

are constitutional; expenditure limits are unconstitutional

Anonymous speech

is protected

- First Amendment right to speak without having to divulge their identity

3) Other commercial speech can be regulated if intermediate scrutiny is met

4) Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative

- Ex. Attorneys cannot solicit accident victims or their estates for 30 days after the accident

Defamation

1) If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice

- Malice – knew the statement was false, or acted with reckless disregard for the truth

2) If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice

- Public figure – thrust themselves into a controversy

3) If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant

- However, the plaintiff may recover presumed or punitive damages only by showing actual malice

- Public concern – public has a legitimate interest

4) If the plaintiff is a “private figure” and the matter is not of “public concern,” the plaintiff can recover presumed or punitive damages without showing actual malice

Privacy (First Amendment right to)

1) The government may not create liability for the truthful reporting of information that was lawfully obtained from the government

2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

3) The government may limit its dissemination of information to protect privacy

- Exception – Press and the public have a First Amendment right to attend criminal trials and most pre-trial proceedings

Public forums

Government properties that the government is constitutionally required to make available for speech (e.g. sidewalks, parks)

1) Regulations must be content-neutral (subject matter and viewpoint neutral), or if not, strict scrutiny must be met

2) Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication

3) Government regulation of public forums need not use the least restrictive alternative

- Ex. Statute that said in order to have a concert in a city park, there had to be use of city sound engineers and city equipment. Concert organizers argued that city could achieve its goal of noise reduction through other means (i.e. maximum decibel level). SC: city does not have to use least restrictive alternative

4) City officials cannot have discretion to set permit fees for public demonstrations

Limited public forums

aka Designated Public forums

Government properties that the government could close to speech, but chooses to open to speech (e.g. school facilities on evenings and weekends)

Rules identical to public forum

Non-public forums

Government properties that the government constitutionally can and does close to speech

- The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral

- Examples

1) Military bases, even those areas usually open to public

2) Areas outside prisons and jails

3) Advertising space on city buses

4) Sidewalks on post office property

5) Airports (Can prohibit solicitation of money, but not distribution of literature)

Right of Access to Private Property

There is no First Amendment right of access to private property for speech purposes

- Ex. Privately owned shopping centers

- Recall you do have a state constitutional right

Laws that prohibit or punish group membership

Freedom of Association
must meet strict scrutiny

- To punish membership in a group, it must be proven that the person

1) Actively affiliated with the group

2) Knowing of its illegal activities

3) With the specific intent of furthering those illegal activities

Laws that require disclosure of group membership

where such disclosure would chill association, must meet strict scrutiny

Ex. NAACP membership in Alabama

Laws that prohibit a group from discriminating

are constitutional unless they interfere with intimate associations or expressive activity

1) Intimate associations

- Ex. No invitation to a small dinner party

2) Expressive activity

- Ex. Klan can exclude blacks; excluding gays from Boy Scouts

Free exercise clause

1)The free exercise clause cannot be used to challenge a neutral law of general applicability

a) Ex. Oregon law against peyote use. Not motivated by a desire to interfere with religion, applied to everyone in the state

b) If not neutral law of general applicability, strict scrutiny applies

2) The government may not deny benefits to individuals who quit their jobs for religious reasons

Establishment Clause

Government may make no law respecting the establishment of religion

- Lemon Test

1) The government cannot discriminate against religious speech or among religions unless strict scrutiny is met

2) Government sponsored religious activity in public schools is unconstitutional

- No school prayer

- But religious student and community groups must have the same access to school facilities as non-religious groups

3) Government may give assistance to parochial schools, so long as it is not used for religious instruction

- Government may provide vouchers which they use in parochial schools

The Lemon Test

Three Part Test (SEX)

1) There must be a secular purpose for the law

- Ex. Ten Commandments must be posted in all classrooms

2) The effect must be neither to advance nor inhibit religion

- Government must not symbolically endorse religion, or a particular religion

3)There must not be excessive entanglement with religion

- Ex. Government generally cannot directly pay teachers salaries in parochial schools because if they did, they would have to monitor what they were teaching, which is an excessive entanglement

True commercial speech that inherently risks deception

Can be prohibited:

a) The government may prevent professionals from advertising or practicing under a trade name

- Ex. Optometrists and opticians could not practice under trade names

- Trade names inherently risk deception because bad doctors could just change their trade name and fool the public

b) The government may prohibit attorney, in-person solicitation of clients for profit

- Ex. Ambulance chasers who go to hospitals (No one there to monitor the encounter)

- Does not apply to pro bono work

- Does not apply to letters – written record

c) The government may not prohibit accountants from in-person solicitation of clients for profit